LARRY W HAUGER, Employee
DISABLED AMERICAN VETS
DEPT OF WIS INC, Employer
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
1. Delete the ninth paragraph under the "Findings of Fact and Conclusions of Law" section and insert:
Pursuant to Wis. Stat. § 108.04(7)(e), the quit disqualification of Wis. Stat. § 108.04(7)(a) does not apply if the employee accepted work which could have been refused under Wis. Stat. § 108.04(9) and terminated the employment within the first 10 weeks after starting the work. Wisconsin Stat. § 108.04(9) provides that a claimant shall not be denied benefits for refusing to accept new work if the wages, hours (including arrangement and number), or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.
2. Delete the 14th paragraph under the "Findings of Fact and Conclusions of Law" section and insert:
The appeal tribunal therefore finds that in week 27 of 2011 the employee accepted work that he could have refused because the wage was substantially less favorable to the employee than the wage prevailing for similar work in his labor market, and that the employee voluntarily terminated that work in week 30 of 2011, within 10 weeks after starting work, within the meaning of Wis. Stat. § 108.04(7)(e).
The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 30 of 2011, if otherwise qualified. If the employer is subject to the contribution requirements of Wis. Stat. § § 108.17 and 108.18, the department shall charge the benefits paid to the employee to the fund's balancing account pursuant to Wis. Stat. § 108.07(h).
Dated and mailed February 3, 2012
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The employer petitioned the adverse appeal tribunal decision and submitted a supporting brief objecting to the consideration of the "Report on Labor Market Information Provided by Wisconsin's Conditions of Employment Database System (COED) for Job Refusals and Voluntary Terminations" upon which the ALJ relied when allowing benefits. The commission has carefully reviewed the record and finds the employer's arguments unpersuasive.
It was undisputed that the employee quit his employment less than one month after the employer unilaterally changed his job duties. The ALJ appropriately applied the "new work" analysis. The employee's rate of pay decreased significantly and a COED report indicates that such wage was substantially less favorable. The ALJ mailed the COED report to the parties after the hearing with a letter which stated: "Unless either party has an objection to the report, it will be received into the record." The employer submitted a written objection by the deadline contained in the letter.
Similar to its argument in its brief, the employer objected to the consideration of the COED report by the ALJ because the employee did not provide the reduction in his rate of pay as his reason for quitting. This argument is not supported by the law. The labor standards "are minimum standards" and "apply to all denials of benefits for refusal of offers of or referrals to new work regardless of [the claimant's] reasons for refusing the job." (Emphasis added). Unemployment Compensation Program Letter Note. 130, p. 2 (January 6, 1947). This is because the purpose of the standards is not primarily directed at particular individuals, but rather is "to prevent the unemployment compensation system from exerting downward pressure on existing labor standards." Id. at 3; Albert v. Fox Cities Learning Center, UI Dec. Hearing No. 08403097AP (LIRC March 26, 2009).
The employer also objected in its letter to the ALJ, as well as in its brief to the commission, to the lack of testimony regarding the document's "meaning, authenticity, or relevancy." Such testimony is not required. The legislature enacted Wis. Stat. § 108.09(4n) which provides:
EMPLOYMENT DATA SYSTEM REPORTS. If the department maintains a database system consisting of occupational information and employment conditions data, and an employee of the department, including an individual who serves as an appeal tribunal, creates a report from the system, the report constitutes prima facie evidence as to the matters contained in the report in any proceeding under this section if:
(a) The department has provided to the parties an explanation of the system and the reports created from the system prior to admission of the report.
(b) The parties have been given the opportunity to review and object to the report, including the accuracy of any information used in creating the report, prior to its admission into evidence.
(c) The report sets forth all of the information used in creating the report.
The ALJ complied with the above-referenced statutory requirements. The ALJ
further addressed the employer's objection in a note at the end of the appeal
tribunal decision and essentially admitted the COED report over the objection of
the employer.(1) The employer included its reasoning for its objection in its letter dated October 24, 2011, and the ALJ made a ruling on whether to admit the report despite the objection. The commission concludes that this is sufficient, especially in light of the unpersuasive objections voiced by the employer. Therefore, the commission modifies and affirms the appeal tribunal decision to find that the employee quit within 10 weeks following the commencement of the "new work" and such quitting was with the same good cause within the meaning of Wis. Stat.
§ 108.04(7)(e).
haugela . umd : 102 : 5
cc:
Attorney Paul Schwartz
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uploaded 2012/04/27